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April 7, 2016

"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"

The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application.  This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.  In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.

The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves.  Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric.  Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.

Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment.  First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse.  Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved.  This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.

April 7, 2016 at 07:47 PM | Permalink


All this paper does is replicate the intellectual mumbo jumbo at the heart of all of the court's rulings regarding dignity. We didn't fight a civil war over dignity, we fought one over equality. Equality and dignity and two incompatible concepts, if not incompossible ones.

Posted by: Daniel | Apr 7, 2016 11:58:31 PM

Dignity is "the state or quality of being worthy of honor or respect."

From ancient times, it was honored as an important quality, but one historically often only deemed appropriate for a specialized elite. In the U.S., it was to be a basic right of the average man. No titles of nobility to be granted here, for instance. Federalist 1 speaks of the Constitution as "the safest course for your liberty, your dignity, and your happiness." "Dignity" has been used in hundreds of court opinions for good cause.

Dignity was so much of a concern in Hamilton's times that men fought duels when their dignity was threatened. A major way was to diminish one's manhood, to allege they were not your equal. Dignity is protected by various constitutional provisions and the barrier of cruel and unusual punishments is a major one. But, slavery was a major way dignity was denied, and this was a concern in the anti-slavery movement. As Booker T. Washington once noted:

"By the same token that Lincoln made America free, he pushed back the boundaries of freedom everywhere, gave the spirit of liberty a wider influence throughout the world, and reestablished the dignity of man as man."

Equality and dignity are compatible. OTOH, it just might be that Daniel is on a different wavelength here, which has been the case in the past.

Posted by: Joe | Apr 8, 2016 9:43:25 AM

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